Alignment of laws can’t be delayed any longer

MEMBERS of the Ninth Parliament this week went through an induction and orientation exercise in order to familiarise them with parliamentary processes and procedures and flag out some of the issues in need of their immediate attention. Induction is extremely important in order to adequately prepare the MPs to effectively execute their functions amid a crisis of high expectations gripping the nation. With 60% of the members new, a thorough induction process cannot be over-emphasised.

Guest Column: John Makamure

In his remarks at the induction workshop, Speaker of the National Assembly Advocate Jacob Francis Mudenda, underscored the importance of aligning the remaining laws with the Constitution in order to avoid what he correctly termed a “constitutional crisis” arising from enabling legislation that is not consistent with the Constitution.

I cannot agree more with the Speaker. The alignment process has taken too long, thereby causing some critics to question the government’s commitment to a culture of constitutionalism. The Constitution is the supreme law of Zimbabwe as provided for in Section 2. This section is unequivocal that “any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency”. Surely, the import of this provision is that we should no longer be talking about alignment five years into a new Constitution. In other words, we cannot keep in our statute books laws that are ultra vires the Constitution for a whole five years.

When one looks at the performance of Parliament over the years, one of the key legislative landmarks of the Seventh Parliament was the enactment of the Constitution of Zimbabwe Amendment Number 20 which repealed the Lancaster House Constitution of 1979. The new supreme and rights-based Constitution introduced a number of fundamental freedoms and rights which were unprecedented in the history of Zimbabwe. It therefore followed that there was need to align various laws with the new Constitution. To be fair, the Eighth Parliament performed this task satisfactorily though more could have been done.

In terms of passing Bills, the Eighth Parliament passed 60 Bills compared to 42 Bills passed during the subsistence of the Seventh Parliament. This was a percentage increase of more than 25%.

However, it is worthy pointing out that a single Act of Parliament can be used to amend Acts of Parliament dealing with different issues. For instance, the General Laws Amendment Act, 2016 amended various laws in order to align them to the 2013 Constitution. It is, therefore, critical to note that there have been different definitions to alignment. Non-consequential amendments, textual or partial amendments are included within the understanding of alignment. Substantive, consequential amendments, or passage of stand-alone legislation to meet a constitutional requirement also constitute alignment. Substitution of the nomenclature of public positions, titles or offices with a new name has also been read as alignment.

In view of the foregoing, it has been said that the General Laws Amendment Act aligned 128 pieces of legislation with the Constitution. These amendments, on overall analysis, were simply textual corrections not very material to the spirit and letter of alignment. Notwithstanding the above, the Eighth Parliament passed a number of key pieces of legislation that were meant to enhance the alignment process. The amendments were done pursuant to one of Parliament of Zimbabwe’ strategic goals for the period 2014-2018 related to the alignment of laws with the Constitution. Some of the key alignment Bills included the Public Health Bill,2017; Electoral Amendment Bill 2014; Electoral Amendment Bill, 2016; National Prosecuting Authority Bill; Finance Act, 2016; Zimbabwe Gender Commission Bill; National Peace and Reconciliation Commission Bill; Criminal Procedure and Evidence Amendment; Labour Amendment Bill; and Local Government Laws Amendment Bill.

By way of systematic analysis, it is important to note that after concerted stakeholder consultations, amendments were effected to certain Bills. For instance, 19 amendments were effected to the National Peace and Reconciliation Commission Bill following adverse comments from the Parliamentary Legal Committee and the Portfolio Committee on Justice, Legal and Parliamentary Affairs, the Thematic Committee on Human Rights and the Thematic Committee on Peace and Security. In terms of impact in the law-making process, it must be noted that following the issuance of an Adverse Report on the National Peace and Reconciliation Bill, the then Vice-President Phelekezela Mphoko, acting through the Minister of State in the Office of the Vice-President, withdrew the Bill in order to address the issues raised. All the shortcomings as raised by Parliament were rectified, thus underpinning the supremacy of Parliament in the legislative process.

So developments in the last Parliament demonstrated that the legislative branch can be effective in the alignment process if the committees are better organised, coupled with extensive and meaningful public consultations on the draft Bills before the House. The Ninth Parliament must deepen these achievements by focusing more on substantive or consequential amendments.

The quest to attract the much-needed inflows of international capital can be given a huge boost if government clearly demonstrates that it has in place what the Speaker describes as a “robust legal framework” consistent with the Constitution, and that is fully enforced without fear or favour. Alignment of laws with the Constitution is a low hanging fruit for the Mnangagwa administration to portray a positive image of itself, and clearly demonstrate that it is, indeed, a new dispensation that has abandoned the previous administration’s lethargic approach in dealing with issues of critical public interest.

Failure to speedily complete alignment of laws poses a threat to the full implementation of our very good constitutional provisions and to potentially violate the prescribed constitutional rights and freedoms. And it is not only about aligning laws, but also about ensuring that the actions, behaviour and conduct of all citizens is seen to be consistent with the letter and spirit of the Constitution.

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